Castro & Trodden

What To Do If You Or A Loved One Has Been A Victim of Malpractice

What is medical malpractice?

Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient.

What must a patient prove in a medical malpractice case?

A medical malpractice plaintiff must establish the following four elements for a successful medical malpractice claim:

A duty was owed to the patient: A legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.

A duty to the patient was breached: The provider failed to conform to the relevant standard care.

The breach caused an injury to the patient: The breach of duty was a direct cause and the proximate cause of the injury.

Damage: The patient must prove a loss (losses may be pecuniary or emotional). Without damage, there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damage can occur without negligence, for example, when someone dies from a fatal disease.

A bad outcome is not necessarily the result of medical malpractice.

As with all things in life, there are no guarantees that the treatment provided by your health care provider will result in a favorable outcome. Accordingly, not all bad outcomes are the result of medical malpractice. A health care provider will only be liable for medical malpractice if that provider deviated from good and accepted medical practice. By way of example, postoperative infections commonly result in a poor outcome but are usually not the result of medical malpractice. Infections are commonly referred to as a "risk of the procedure".

What is informed consent?

A physician has a duty to disclose to a patient, all significant medical information necessary for a patient to make an informed decision whether to undergo a proposed procedure. In this regard, a physician must disclose to his/her patient the risks, benefits and alternatives of the proposed procedure. Failure to do so may result in a sustainable claim for medical malpractice.

Is there a time limit on the filing of a medical malpractice claim?

Yes. There is only a limited time during which a medical malpractice lawsuit can be filed. These time limits are set by statute. The length of the time period and when that period begins varies by jurisdiction and the type of malpractice. Therefore, each case must be evaluated to determine the specific statute of limitations for that particular case. As a general rule, in New York, the statute of limitations is two and a half years but certain provisions could lengthen or shorten that period of time.

What to do if you believe you or a loved one was a victim of medical malpractice.

Contact an attorney experienced in handling medical malpractice cases as soon as possible. Failure to procure early representation could adversely affect the chances of recover.